Navaneethammal
Vs. Arjuna Chetty [1996] INSC 1080 (6 September 1996)

N.P.
Singh, K. Venkataswami

ACT:

HEAD NOTE:

The
plaintiff Who filed a suit on 13.6.1962 for declaration of her title to the
suit property and for recovery of possession is the appellant herein. The suit
property is an extent of 1.13 acre out of 3.39 acres in Survey No. 330/2 in UlliVillage, Gudiyatham
Taluk. North Arcot District, Tamil Nadu. It was purchased by the plaintiff
under registered sale deed dated 21.3.1957 from one Mohd. Ghouse. The
respondent herein who was the defendent in the suit admittedly was let in to
possession of the suit property along with the balance of above-mentioned
Survey 330/2 as a tenant under a registered Lease deed dated 1.4.1935 The
vendor of the plaintiff after the sale issued a notice to the defendant on
16.4.1957 intimating the fact of sale to the plaiantiff. The defendant in his
reply dated 27.4.1957 denied his status as lessee and his liability to pay
rent. He set up title in himself to the suit property.

The
plaintiff on his part issued a notice on 10.5.1957 intimating the defendant
about her purchase and calling upon him to pay rent in future as a lessee. As
defendant set up title in himself, the plaintiff was obliged to file the suit
as stated above.

The
suit was resisted on the ground resisted on the ground that after the expiry of
the registered lease, he surrendered possession of the suit property to the
then landlord and thereafter, since it was under nobody's occupation, he
entered possession in his own right and not as a lessee and he has not even
paid rent to anybody after the after the expiration of lease. Further it was
alleged that he has plaintiff's suit for recovery of possession was barred by
limitation. The Trial Court framed as many as six issues and after examining
three witnesses on the side of the plaintiff and five witnesses on the side of
the defendant and after perusing 13 documents filed on the side of the
plaintiff and 21 documents filed on the side of the defendant, it found that
the plea of surrender was not established and defendant did not prescribe title
by adverse possession. Accepting the case of the plaintiff, the trial court
decreed the suit declaring that the plaintiff was entitled to the suit property
and directed the defendant to surrender possession without any let or
hindrance.

The
defendant aggrieved by the decree against him preferred an appeal to the
learned Subordinate Judge, Tirupattur. Unfortunately, on account of certain
lapses, The High Court was compelled to remand the matter to the Appellate
Court on three occasions Finally the First Appellate court by it s detailed
judgment on 9.9.1976 confirmed the decree of the Trial Court and dismissed the
appeal preferred by the defendant.

Still
aggrieved, the defendant preferred second appeal No. 1801/76 in the Madras High
Court. The learned Single Judge of the Madras High Court found that the Court
below failed to come to correct conclusion on the basis of the evidence both
oral and documentary placed before them and in a way gone into the evidence onceover
and reversed the findings rendered by the Court below and consequently allowed
the Second Appeal. dismissed the suit filed by the plaintiff.

Aggrieved
by the judgment of the High Court, the present appeal has been filed by the
plaintiff appellant by Special Leave.

Mr. K.
Rajendra Chowdary, learned counsel appearing for the appellant submitted that
the High Court exceeded its jurisdiction under Section 100 CPC in reversing the
concurrent findings of the Courts below. He also submitted that the High Court
went wrong in placing the onus of proof regarding the character of possession
of the suit land by the defendant, on the plaintiff when admittedly the
defendant was let into the possession as a tenant under a registered lease deed
of the year 1935. The High Court, according to the learned counsel ought not to
have discussed the issue of adverse possession with reference to Article 139 of
the old Limitation Act, 1908 as no such plea was taken in the written statement
nor any issue was framed concerning that. He further invited our attention to
the well founded reasoning and the concurrent findings supported by evidence,
of the lower Appellate Court which did not call for any interference by the
High Court while exercising the jurisdiction under section 100 C.P.C.

Mr. R.
Sundarvardhan, Sr. Counsel appearing for the defendant-respondent strongly
supported the judgment of the High Court mainly on the basis of Article 139 of
the old Limitation Act which corresponds to Article 67 of the new Limitation
Act, 1963. According to the learned Sr. Counsel, it is an admitted fact that
after the expiry of the lease in the year 1938, the defendant never paid any
rent for his continued possession in the suit property and in the absence of any
exercise of ownership by the landlord for a continuous period of over twelve
years, the defendant prescribed title by adverse possession. He also placed
reliance on the fact of payment of kists (land revenue) to the suit land by the
defendant. He submitted that the High Court has given good reasons for
interfering under section 100 CPC stating that the findings rendered by the
Court below were not based on materials to sustain those findings and
therefore, it must be taken that the findings were rendered by court below
based on no evidence. According to the learned counsel on the admitted facts of
this case, namely, that neither the lessor nor his legal representative having
not claimed any rent continuously for a period of twelve years after the expiry
of the lease, Section 116 of the Transfer of Property Act would not come to the
aid of the lessor or his successors in interest when the tenant invokes the aid
of Article 139 of the old Limitation Act. He wants the Court to look into
Article 139 of the old Limitation Act alone for counting the period of
limitation imply from the expiry of the date of the lease ignoring the hard
fact that the defendant continued after the expiry of lease either as tenant
holding over or as a tenant by sufferance.

Mr. Rajendra
Chowdary, learned counsel for the appellant in reply submitted that in terms of
the registered lease deed, the lessee/defendant/respondent herein was bound to
pay the kists for the suit land and therefore, the payment of kists after the
expiry of the lease will not make any difference in the case. He also contended
that the defendant for the first time set up hostile title in himself only on
27.4.1957 in his reply notice. The suit filed in 1962 is well within time.

We
have considered the rival submission.

Before
discussing the merits of respective rival submission, it is necessary to bear
in mind that the case set up by the defendant in the Trial Court was
prescription of title by adverse possession after surrendering the suit land
and again re-entering the same.

No
plea contending that the suit was barred under Article 139 of the old
Limitation Act was taken by the defendant in the trial court. Therefore, there
was no necessity for framing any issue or letting in oral evidence on that
aspect. This aspect assumes importance in considering the evidence.

This
Court, time without number, pointed out that interference with the concurrent
findings of the courts below by the High Court under Section 100 CPC must be
avoided unless warranted by compelling reasons. In any case, the High Court is
not expected to re-appreciating the evidence just to replace the findings for
the lower courts.

Let us
see whether the High Court on the facts of his case has exceeded its
jurisdiction in reversing the findings of the lower Appellate Court by
re-appreciating the evidence.

Before
the Trial Court, the crucial issue was regarding adverse possession. On that
issue, the Trial Court found that as the tenant/defendant came into possession
of the land only in pursuance of the lease deed, his possession was merely a
permissive one. It was further found that there was no evidence before the
Trial Court to show that prior to the date of Exbt. A-6 (reply by defendant) he
had never claimed independent title to the suit property and had brought that
animus to the notices to the land-lord or the successors in title. The Trial
Court also noticed an important fact and observed as follows:

"In
the writte statement, it is stated that after the expiry of the lease period
mentioned under Exbt.

A-3,
he had surrendered possession of the land and that he again got the possession
of the land in his own independant right and from that date onwards, he has
been in possession of the land continuously uninterruptedly as the owner of the
lands. This claim has been given a go-by by him in his deposition." The
Trial Court also found that in as much as the defendant asserted his independant
right in the land in himself only under Ext. A-6 dated 27.4.1957, his
possession was not adverse to the owners of the land as the suit came to be
filed within five years thereafter.

The
First Appellate Court framed the question for consideration on ramand as
follows:

"Whether,
having regard to the evidence, oral or documentary and the probabilities of the
case, there could be an inference of implied assent by the land-lord to the
continuance in possession by the tenant after the termination of the term under
Exbt. A-3".

In
discussing the oral evidence, the first appellate court held as follows:

"Before
advertising to the arguments of counsel appear for both parties. I would like
to refer to the oral evidence in this case, plaintiff's vendor Mohamed Ghouse
Sahib was examined as P.W.I. He is a retired Post Master and is aged about 70
years. His definite testimony is that after the demise of Samad Sahib, he
(P.W.I) and Khader Sahib were collecting rents, that the there were rent
arrears to the extent of Rs.200/- or Rs.250/-, that they gave notice to the
defendant and that after receipt of the notice, the defendant was paying some
amounts in instalments. he denied that after the expiry of the lease period in
Ex. A-3, the defendant surrendered possession of the property and that because
the property remained unoccupied, the defendant trespassed upon the lands As
rightly pointed out by the learned counsel for the plaintiff, the evidence of
P.W. 1 with regard to the collection of rents by him and Khader Sahib and
payment of some amount by the defendant in instalment was not challenged at all
in cross-examination. In this connection. I may point out the admission of the
defendant as D.W.2 that there is no enmity between him and P.W.1. In the
absence of any motive. I do not understand as to why P.W.1 who is a respectable
witness should come and make false statement in Court so far as this aspect of
the case is concerned. I see no valid reason to disbelieve him in this
respect." Again in para 12, the lower Appellate Court held as follows:

"No
doubt, the defendant as D.W.2 would say that there is enmity between him and
P.W.2. But on this ground alone, the evidence of P.W.2 that he had seen P.W.1
and Khader Sahib at the village when coming to collect rents(elicited during
cross-examination) cannot be rejected as false. His evidence when considered alongwith
the other circumstance in this case appears to me quite probable and
acceptable. P.W.3, Veeraraghava Pillai is the husband of the plaintiff and karnam
of Ulli village for more than 30 years. His definite testimony is that the
defendant was a tenant holding over of this land." On a perusal of the
lower Appellate Court judgment, we find hat findings rendered by the lower
Appellate court were very well based on materials placed before it and the
contrary conclusion reached by the High Court is not sustainable. The lower
Appellate court in its judgment has appreciated all relevant oral and
documentary evidence and observed as follows:

"On
the side of the defendant, we have the evidence of D.Ws. 1 to 5 of them D.W.1
is the Hand Writing Expert He was examined with reference to Ex. A-4. His
evidence is not relevant for our present limited enquiry. D.W. 3 Ramakrishan is
a resident of Ulli village.

D.W.4 Mahadevan
is a resident of Gopampatti. D.W. 5 Karunagaran is a contractor by profession
at Gudiyatham. There three witnesses claim to own lands near the suit property.
They would say that the defendant has been in possession and enjoyment of the
suit land for the last 32 to 35 years. But they are not in a position to say as
to in what capacity the defendant entered into possession of this property.
Their evidence that the defendant is in continuous possession and enjoyment of
the suit lands is of no significance because the admitted case of the plaintiff
is that the defendant is in possession from 1935 but as a tenant holding over.
The evidence of defendant as D.W.2 would certainly throw some light in deciding
the issue before us. For better appreciation I would prefer to extract the
relevant on by the plaintiff.

"One
Sahib leased out the property to me for three years under a registered lease
deed. I cultivated the land for tow years. I the third year the Sahib took me
to P.W.3's house. My father accompanied me.

P.W.3's
father told me that the Sahib would not come thereafter and the lease deed was
cancelled and that thereafter I could enjoy the land and I need not worry since
the former's son. P.W.3 was the village karnam. Thereafter, I was enjoying the
land without any interruption. The lessor, my father and P.W. 3's father went
to P.W.3 fathers's house. At that time P.W.3 was the village karnam. I was sent
for about for or five hours later. P.W. 3 was not present at the time. His
father told that they had decided that the lease period had expired and that
thereafter I could enjoy the land as my own without paying rent to anybody and
I should pay the kists my self. At that time, including me only four ' persons
were present.

The
Sahib was then present. The incident took place at the beginning of the third
lease year.

I was
not asked to give any amount in pursuance of the decision. The entire land is
wet land. Even at that time the land was worth two thousand rupees. I so not
know whether my father gave any amount in pursuance of the decision. I did not
ask him about it. I did not give the rent for the third year. From the date of
the registered lease deed I am in continuous possession and enjoyment of the
land. Due to forget fulness I have not stated the above incident in my written
statement and also to my counsel who gave the reply notice: I did not tell him
that I had surrendered possession of the land and thereafter the land was in
nobody's possession for some time and that I again got into possession of the
land" Again in paragraph 18, the learned Subordinate Judge held as
follows:

"As
already stated, in the reply notice Ex. A-6 the defendant is silent about his
induction into possession of the suit property at any time as a lessee, any
alleged surrender or his occupation finding the property lying unoccupied. In
his written statement his specific case is that at the end of term under Ex.A-3
he surrendered possession of the suit property and that thereafter he was in
possession of the property in his own right. A third case was put forward
during the trial through the mouth of the defendant as D.W.2, I have already
adverted to his evidence in this respect. That would show that even at the end
of the second year i.e. in the year 1937 and before the commencement of the
third year, he was taken to P.W. 3's father's house by some Sahib that his
father was also present and that he was informed that the lease was cancelled and
that he could enjoy the land as he liked. It has to be noted that even
according to D.W.2 this property was worth Rs.2000/- at that time. It is highly
unlikely that no prudent man would have given up his right in such a valuable
property in favour of another person without any consideration. It is not the
case of the defendant that he had done some services to the family of the
original owners of this property or that he paid some consideration towards the
value of this property and that because of such consideration, he was orally
asked by the Sahib to enjoy the land as his own. When in the year 1935, the
defendant and Samad Sahib have taken the precaution of getting lease deed
registered, it is unlikely that the defendant would have failed to obtain something
in writing when as alleged by him (D.W.2. the Sahib asked him to enjoy the land
as he liked saying that the lease was cancelled. As already stated the case set
out by the defendant in his reply notice is that the property remained
unoccupied and that so he entered into possession and occupied it.

Having
regard to these facts and having regard to the evidence of P.Ws. 1 to 3 with
regard to the collection of rents and the property as a tenant and also having
regard to the probabilities and circumstances of this case, I find no
difficulty in coming to the conclusion that there should have been an implied
assent by the landlord to the continuance in possession by the defendant after
termination of the term under Ex.A-3".

In the
light of these findings of the courts below, the High Court on re-appreciation
of evidence found as follows:

"Thus
there is nothing as and by way of evidence which can be taken to support the
contention of the respondent that there was a tenancy after the expiry of the
original tenancy in the year 1938" "I have discussed the facts to
show that there are no materials to support the findings of the lower Appellate
Court that there was a continuation of tenancy after the expiry of the original
lease." "That there must be some act which evidence the lessor being
agreeable to the tenant being in possession of the property leased so as to
infer an assent. In the absence of such a conduct in the present, it is not
possible to draw the inference that there was any assent on the part of the plaintiff
to the defendant continuing in possession of the property." In our
considered view the lower Appellate Court has fairly appreciated the evidence
in the above background and has reached the conclusion that the suit was not
barred by Limitation. Even assuming that another view is possible on a
re-appreciation of the same evidence, that should not have been done by the
High Court as it cannot be said that the view taken by the First Appellate
Court was based on no material.

Article
139 of the old Limitation Act reads as follows:

Article
139 ------------------------------------------------------ Description of
Period of Time from which suit limitation period begins to run
------------------------------------------------------ By a landlord Twelve
years When a tenancy is to recover determined. possession from a tenant
------------------------------------------------------ The date on which the
tenancy is determined will be the date from which the period of limitation
would begin to run for the purpose of Article 139 of the old Limitation Act.

One
mode of determining tenancy under Transfer of Property Act is by way of
surrender by the tenant. We have seen on facts that an attempt was made by the
defendant- respondent that he had surrendered the suit property after the
expiry of the lease and thereafter re-entered the suit land and continued in
possession in his own right. However, this case was not accepted by the trial
court as well as by the appellate court for well-founded reasons as noticed
above. That being the position the possession by the defendant on the fact as
found by the First Appellate Court, in this case, after the expiry of the lease
further continuance was only permissive and will not give cause for prescribing
title by adverse possession. Further, for the first time, while replying to the
notice by the vendor of the plaintiff, the defendant openly set up a hostile
title and the suit having been filed within five years there from is not barred
by limitation.

In the
circumstances, we are satisfied that the High Court was not justified in
interfering with the judgments of the courts below. Consequently, the appeal is
allowed. There will be no order as to costs.